CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	What Caused the 2016 Chicago Homicide Spike? An Empirical Examination of the 'ACLU Effect' and the Role of Stop and Frisks in Preventing Gun Violence Paul G. Cassell and Richard Fowles University of Utah - S.J. Quinney College of Law and University of Utah - College of Social & Behavioral Sciences - Department of Economics Date Posted: 27 Mar 2018 [new to top ten]	734
2.	Cross-Enforcement of the Fourth Amendment Orin S. Kerr University of Southern California Gould School of Law Date Posted: 19 Mar 2018 [new to top ten]	341
3.	Harmless Errors and Substantial Rights Daniel Epps Washington University in St. Louis - School of Law Date Posted: 16 Feb 2018 [1st last week]	218
4.	State Criminal Appeals Revealed Michael Heise, Nancy J. King and Nicole A. Heise Cornell Law School, Vanderbilt University - Law School and University of Chicago, Law School, Students Date Posted: 31 Jan 2018 [2nd last week]	199
5.	How Trial Judges Should Think About Forensic Science Evidence Jonathan J. Koehler Northwestern University - Pritzker School of Law Date Posted: 12 Feb 2018 [4th last week]	195
6.	Principles of Risk Assessment: Sentencing and Policing Christopher Slobogin Vanderbilt University - Law School Date Posted: 09 Mar 2018 [5th last week]	133
7.	Possible Problems at the San Clemente Checkpoint Elizabeth N. Jones Western State College of Law Date Posted: 17 Feb 2018 [6th last week]	115
8.	'Don't Elect Me': Sheriffs and the Need for Reform in County Law Enforcement James Tomberlin University of Virginia - School of Law, Alumnus or Degree Candidate Author Date Posted: 09 Mar 2018 [new to top ten]	108
9.	Accountability in Policing: How Complicity Perpetuates Institutional Injustice and Inequities in the United States and South Africa Aditi Juneja Independent Date Posted: 05 Feb 2018 [7th last week]	105
10.	The Myth of the Reliability Test Brandon L. Garrett and M. Chris Fabricant University of Virginia - School of Law and Innocence Project, Inc. Date Posted: 12 Mar 2018	105

Nance on Implicit Racial Bias and Students' Fourth Amendment Rights

Jason P. Nance (University of Florida Levin College of Law) has posted Implicit Racial Bias and Students' Fourth Amendment Rights (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

Tragic acts of school violence such as what occurred in Columbine, Newtown, and, most recently, Parkland, provoke intense feelings of anger, fear, sadness, and helplessness. Understandably, in response to these incidents (and for other reasons), many schools have intensified the manner in which they monitor and control students. Some schools rely on combinations of security measures such as metal detectors, surveillance cameras, drug-sniffing dogs, locked and monitored gates, random searches of students’ belongings, lockers, and persons, and law enforcement officers. Not only is there little empirical evidence that these measures actually make schools safer, but overreliance on extreme security measures can create prison-like environments that are inconsistent with students’ best interests. Specifically, overreliance on intense surveillance measures often engenders distrust and discord among members of the school community in the long term, leading to increased disorder and dysfunction. Extreme security measures also play a role in pushing more students out of school and into the criminal justice system, which can have devastating consequences on students and their families. 

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Eagly & Schwartz on The Privatization of Police Policymaking

Ingrid V. Eagly and Joanna C. Schwartz (University of California, Los Angeles (UCLA) - School of Law and University of California, Los Angeles (UCLA) - School of Law) have posted Lexipol: The Privatization of Police Policymaking (96 Texas Law Review 891 (2018)) on SSRN. Here is the abstract:

 

This Article is the first to identify and analyze the growing practice of privatized police policymaking. In it, we present our findings from public records requests that reveal the central role played by a limited liability corporation — Lexipol LLC — in the creation of internal regulations for law enforcement agencies across the United States. Lexipol was founded in 2003 to provide standardized policies and training for law enforcement. Today, more than 3,000 public safety agencies in thirty-five states contract with Lexipol to author the policies that guide their officers on crucial topics such as when to use deadly force, how to avoid engaging in racial profiling, and whether to enforce federal immigration laws. In California, where Lexipol was founded, as many as 95% of law enforcement agencies now rely on Lexipol’s policy manual.

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Baer on Insider Trading's Legality Problem

Miriam H. Baer (Brooklyn Law School) has posted Insider Trading's Legality Problem (Yale Law Journal Forum, Vol. 127, p. 129, June 2017) on SSRN. Here is the abstract:

 

In late 2016, in its highly-watched decision in Salman v. United States, the Supreme Court attempted once again to clarify the crime of insider trading, this time regarding the secondary and tertiary recipients of information commonly referred to as “remote tippees.” In doing so, the Court seemed to put to rest any question that a person who “gifts” a friend or family member with material non-public information for the purposes of trading on such information does in fact trigger a violation of law. As cases go, Salman is relatively straightforward. Nevertheless, it demonstrates several of the drawbacks that arise when criminal laws become the product primarily of cases and not statutes. Ordinarily, proponents of legislative law-making cast their arguments in fairness terms, as written statutes provide advance warning of what is and is not forbidden. This Essay contends that legislatively enacted statutes go further than that. Under the best circumstances, they can improve the content of criminal law precisely because they permit the legislature to differentiate similar yet morally distinct conduct. With this benefit in mind, the Essay imagines what insider trading law might look like were Congress to both define and subdivide the crime of insider trading into the kind of tiered or degreed crimes more routinely featured in state codes.

Ferguson on Illuminating Black Data Policing

Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted Illuminating Black Data Policing (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

The future of policing will be driven by data. Crime, criminals, and patterns of criminal activity will be reduced to data to be studied, crunched, and predicted. The benefits of big data policing involve smarter policing, faster investigation, predictive deterrence, and the ability to visualize crime problems in new ways. Not surprisingly then, police administrators have been seeking out new partnerships with sophisticated private data companies and experimenting with new surveillance technologies.

This potential future, however, has a very present limitation. It is a limitation largely ignored by adopting jurisdictions and could, if left unaddressed, delegitimize the adoption and use of new data-driven technologies. Simply put: all big data policing technologies have a “black data” problem. “Black data” connotes three overlapping concerns. First, big data policing is opaque, lacking transparency because most of the magic happens as a result of “black box” proprietary and mathematically complex algorithms. Second, big data policing is racially encoded, colored by the history of real-world policing that disproportionality impacts communities of color. Finally, big data policing faces legal uncertainty as old constitutional doctrines built on small data principles no longer work in the new big data age. The future path of traditional Fourth Amendment law is uncertain, dark, and distorted.

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Wells on Constitutional Remedies for Wrongful Convictions

Michael Lewis Wells (University of Georgia School of Law) has posted Wrongful Convictions, Constitutional Remedies, and Nelson v. Colorado

(Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This article examines the U.S. Supreme Court’s Nelson v. Colorado opinion, in which the Court addressed the novel issue of remedies for persons wrongly convicted of crimes. Governments routinely deprive criminal defendants of both liberty and property upon conviction, and do so before giving them a chance to appeal their convictions and sentences. When a conviction is overturned, the state typically refunds fines and most other monetary exactions but seldom compensates for the loss of liberty. In Nelson, the Supreme Court addressed an unusual case in which the state did not return the money and that refusal was approved (purportedly on the authority of a Colorado statute) by the Colorado Supreme Court. With only Justice Thomas dissenting, the Supreme Court held that Nelson was entitled to a refund, as a matter of procedural due process, but seemed to approve of the liberty/property distinction. This article argues, first, that the Court’s procedural due process analysis skips over the logical first step of identifying Nelson’s constitutionally protected property interest: second, that the Court could have sidestepped that difficulty by focusing instead on the inadequacy of the state ground on which the Colorado Supreme Court based its ruling; and third, that property is distinguished from liberty in a more convincing way in Justice Alito’s opinion concurring in the judgment.

Kerr on Cross-Enforcement of the Fourth Amendment

Orin S. Kerr (University of Southern California Gould School of Law) has posted Cross-Enforcement of the Fourth Amendment (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This Article considers whether government agents can conduct searches or seizures to enforce a different government’s law. For example, can federal officers make stops based on state traffic violations? Can state police search for evidence of federal immigration crimes? Lower courts are deeply divided on the answers. The Supreme Court’s decisions offer little useful guidance because they rest on doctrinal assumptions that the Court has since squarely rejected. The answer to a fundamental question of Fourth Amendment law – who can enforce what law – is remarkably unclear.

After surveying current law and constitutional history, the Article offers a normative proposal to answer this question.

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Koops et al. on Remaining Unobserved

Bert-Jaap Koops, Bryce Clayton Newell, Andrew J. Roberts, Ivan Škorvánek and Maša Galič (Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT), University of Kentucky, Melbourne Law School, Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) and Tilburg University - Tilburg Institute for Law, Technology, and Society) has posted The Reasonableness of Remaining Unobserved: A Comparative Analysis of Visual Surveillance and Voyeurism in Criminal Law (Law and Social Inquiry, 2018) on SSRN. Here is the abstract:

 

The criminalization of offensive, privacy‐intrusive behavior is an important form of privacy protection. However, few studies exist of visual observation in criminal law. We address this gap by researching when nonconsensual visual observation is deemed harmful enough to trigger criminal sanctions, and on what basis the law construes the “reasonableness of remaining unobserved,” through a nine‐country comparative study. We distinguish between voyeurism‐centric approaches (focusing largely on nudity and sex) and broader, intrusion‐centric approaches (such as observation inside closed spaces). Both approaches explicitly or implicitly reflect “reasonable” privacy expectations, listing criteria for situations in which people can reasonably expect to remain unobserved or unrecorded. We present a framework for criminalizing non-consensual visual observation, encompassing factors of technology use, place, subject matter, and surreptitiousness, supplemented by factors of intent, identifiability, and counter‐indicators to prevent over‐criminalization. This framework is relevant for protecting visual aspects of privacy in view of individuals' underlying autonomy interests.

Ferguson on Big Data and the Exclusionary Rule

Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted The Exclusionary Rule in the Age of Big Data (Vanderbilt Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court’s understanding of the exclusionary rule: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The open question remains: how can defendants demonstrate sufficient recurring or systemic negligence to warrant exclusion? The Supreme Court has never answered the question, although the absence of systemic or recurring problems has figured prominently in two recent exclusionary rule decisions. Without the ability to document recurring failures, or patterns of police misconduct, courts can dismiss individual constitutional violations merely as examples of “isolated negligence.”

But, what if new data-driven surveillance technologies could track police-citizen interactions and uncover recurring or systemic problems? What if stops and arrests could be data-mined to reveal systemic racial bias? What if new surveillance technologies could record police-citizen stops to monitor patterns of unconstitutional practices? What if predictive analytics could identify at-risk officers in order to predict future misconduct?

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Hessick on The Myth of Common Law Crimes

Carissa Byrne Hessick (University of North Carolina School of Law) has posted The Myth of Common Law Crimes (Virginia Law Review, 2019 Vol. 105, No. (Forthcoming)) on SSRN. Here is the abstract:

 

Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an important role in modern American criminal law, and to the extent that it has been displaced by statutes, our justice system has not improved. Criminal statutes regularly delegate to prosecutors questions about the scope of criminal law, and judges have failed to serve as a check on that power. As a consequence, the current system provides less notice, less accountability, less separation of powers, and more potential for abuse than the common law system. Thus, to the extent the statute has displaced common law, the shift is not a story of the triumph of the rule of law; it is instead a story of legislative excess, prosecutorial supremacy, and judicial abdication. The conventional wisdom of criminal common law is not only false, but it also conceals the failings of our current criminal justice system.

Chacon on Incarceration and Subjugation

Jennifer M. Chacón (University of California, Irvine School of Law) has posted Book Review: Unsettling History (Harvard Law Review, Vol. 131, No. 4, p. 1078, 2018) on SSRN. Here is the abstract:

 

This review examines Kelly Lytle Hernández’s book City of Inmates: Conquest, Rebellion and the Rise of Human Caging in Los Angeles, 1771-1965. The book argues for a recognition of the unacknowledged extent to which so much of our criminal enforcement system — and particularly the growth of the carceral state — embodies a broader settler-colonial project. The enslavement and the continued subjugation of African Americans is an essential component of this story. Hernández’s work situates the legacy of slavery in the broader settler-colonial frame, while simultaneously bringing into focus the ways that the elimination of indigenous peoples and related imperialist foreign policy objectives have also been important ingredients in the evolution of the contemporary criminal enforcement system. She not only provides details of events and developments that are overlooked in some other accounts, but also complicates our understanding of some well-known developments, including the growth of the federal prison system, the development and enforcement of vagrancy laws, and the interplay between immigration enforcement and criminal enforcement.

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Henry on No-Crime Wrongful Convictions

Jessica Henry (Montclair State University) has posted Smoke but No Fire: When Innocent People Are Wrongly Convicted of Crimes That Never Happened (American Criminal Law Review, Volume 55, Spring 2018) on SSRN. Here is the abstract:

 

Nearly one-third of exonerations involve the wrongful conviction of an innocent person for a crime that never actually happened, such as when the police plant drugs on an innocent person, a scorned lover invents a false accusation, or an expert mislabels a suicide as a murder. Despite the frequency with which no-crime convictions take place, little scholarship has been devoted to the subject. This Article seeks to fill that gap in the literature by exploring no-crime wrongful convictions as a discrete and unique phenomenon within the wrongful convictions universe. This Article considers three main factors that contribute to no-crime wrongful convictions: official misconduct in the form of police lies, aggressive policing tactics, and prosecutorial malfeasance; the mislabeling of a non-criminal event as a crime; and outright fabrications by informants and non-governmental witnesses with motivations to lie.

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Keren-Paz & Wright on Liability for Mass Sexual Abuse

Tsachi Keren-Paz and Richard W. Wright (Keele University - Keele School of Law and Chicago-Kent College of Law - Illinois Institute of Technology) have posted Liability for Mass Sexual Abuse on SSRN. Here is the abstract:

 

When harm is caused to victims by multiple injurers, difficult issues arise in determining causation of, legal responsibility for, and allocation of liability for those harms. Nowhere is this more true than in child pornography and sex trafficking cases, in which individuals have been victimized over extended periods of time by hundreds or even many thousands of injurers, with multiple and often overlapping victims of each injurer. Courts (and lawyers) struggle with these situations for a simple reason: they insist on applying tests of causation that fail when the effect was over-determined by multiple conditions. The failure to properly understand the causation issue has exacerbated failures to properly understand and distinguish the injury, legal responsibility and allocation of liability issues.

All of these issues, plus other significant issues, arose in Paroline v. United States (2014), in which the Supreme Court considered the statutory liability of a convicted possessor of child pornography to a victim whose images he possessed for the pecuniary losses that she suffered due to her knowledge of the widespread viewing of those images.

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Garrett on International Corporate Prosecutions

Brandon L. Garrett (University of Virginia - School of Law) has posted International Corporate Prosecutions (Chapter in Comparative Criminal Procedure, Darryl Brown, Jenia Turner, and Bettina Weisse, eds., Oxford U. Press (2018 Forthcoming)) on SSRN. Here is the abstract:

 

One of the most remarkable stories in criminal law is the recent rise of corporate prosecutions across the world. In the past, even in countries that permitted corporations to be prosecuted for crimes, such prosecutions were not a common practice and any fines were minimal. In the past fifteen years, though, in the United States, many of the largest corporate prosecutions in the world have been brought, often involving international crimes by multinational companies. Billion dollar corporate penalties are now a regular occurrence. Multinational prosecutions have also involved cooperation by prosecutors across countries and parallel prosecutions of the same corporation for crimes committed in different countries. 

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deGuzman on Schabas's Criminal Law Philosophy

Margaret M. deGuzman (Temple University - James E. Beasley School of Law) has posted Criminal Law Philosophy in William Schabas’s Scholarship (ARCS OF GLOBAL JUSTICE: ESSAYS IN HONOR OF WILLIAM A. SCHABAS (Margaret M. deGuzman & Diane Marie Amann eds., Oxford University Press 2017)) on SSRN. Here is the abstract:

 

Much of the writing on international criminal law lacks a clear philosophical orientation and instead draws implicitly on a mix of criminal law theories to support analytic and prescriptive arguments. The work of Professor William Schabas, one of the most prolific and influential scholars in the field, in whose honor this volume is published, exemplifies this trend. This chapter examines the deontological and consequentialist strains in Professor Schabas’s writing to illuminate the role that criminal law philosophy plays in much of the scholarly discourse in international criminal law.

Gupta-Kagan on Young Adult Sentencing and Mass Incarceration

Josh Gupta-Kagan (University of South Carolina School of Law) has posted The Intersection between Young Adult Sentencing and Mass Incarceration (Wisconsin Law Review, Vol. 2018, No. #4 (Forthcoming)) on SSRN. Here is the abstract:

 

This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system more leniently than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in depth connections between the two. 

Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young adults commit a disproportionate number of crimes. Because so many offenders are young adults, treating young adults less severely could have significant impacts on the number of individuals incarcerated.

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Roberts on Informed Misdemeanor Sentencing

Jenny Roberts (American University - Washington College of Law) has posted Informed Misdemeanor Sentencing (Hofstra Law Review, Vol. 46, No. 171, 2017) on SSRN. Here is the abstract:

 

There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant. But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords. 

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Brain Development, Social Context and Justice Policy Elizabeth S. Scott, Natasha Duell and Laurence Steinberg Columbia University - Law School, Temple University and Temple University - Department of Psychology Date Posted: 06 Feb 2018	280
2.	Emojis and the Law Eric Goldman Santa Clara University - School of Law Date Posted: 08 Mar 2018	196
3.	The State of the Death Penalty Decline Brandon L. Garrett and Ankur Desai University of Virginia - School of Law and University of Virginia - School of Law, Alumnus or Degree Candidate Author Date Posted: 22 Feb 2018 [7th last week]	97
4.	Legal History of Medical Aid in Dying: Physician Assisted Death in U.S. Courts and Legislatures Thaddeus Mason Pope Mitchell Hamline School of Law Date Posted: 21 Jan 2018 [6th last week]	95
5.	Cannabis Decriminalization: A Study of Recent Policy Change in Five States Rick Grucza, Melissa Krauss, Andrew Plunk, Arpana Agrawal, Frank J. Chaloupka and Laura Bierut Washington University in St. Louis - Department of Psychiatry, Washington University in St. Louis - Department of Psychiatry, Eastern Virginia Medical School - Department of Pediatrics, Washington University in St. Louis - Department of Psychiatry, University of Illinois at Chicago - Department of Economics and Washington University in St. Louis - Department of Psychiatry Date Posted: 05 Mar 2018 [new to top ten]	68
6.	A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force' Conrad Kahn and Danli Song Federal Defender's Office, MDFL and Federal Defender's Office, MDFL Date Posted: 16 Feb 2018 [9th last week]	65
7.	Immigration's Problem Child: Structural Problems Inherent in Removal of 'Sexual Abuse of a Minor' Offenders Meredith Pohl University of Mississippi, School of Law Date Posted: 20 Feb 2018 [10th last week]	55
8.	Legal Punishment As Civil Ritual: Making Cultural Sense of Harsh Punishment SpearIt Texas Southern University - Thurgood Marshall School of Law Date Posted: 20 Feb 2018 [new to top ten]	52
9.	The Pen-Trap Statute and the Internet Josh Goldfoot U.S. Department of Justice - Computer Crime & Intellectual Property Section, Criminal Division Date Posted: 25 Feb 2018 [new to top ten]	52
10.	#I🔫U: Considering the Context of Online Threats Lyrissa Barnett Lidsky and Linda Riedemann Norbut University of Missouri School of Law and Brechner Center for Freedom of Information, University of Florida Date Posted: 06 Feb 2018 [new to top ten]	50

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Harmless Errors and Substantial Rights Daniel Epps Washington University in St. Louis - School of Law Date Posted: 16 Feb 2018	207
2.	State Criminal Appeals Revealed Michael Heise, Nancy J. King and Nicole A. Heise Cornell Law School, Vanderbilt University - Law School and University of Chicago, Law School, Students Date Posted: 31 Jan 2018	196
3.	Practicing Indian Law in Federal, State, and Tribal Criminal Courts and an Update on Recent Expansion of Criminal Jurisdiction Over Non-Indians James D. Diamond University of Arizona - Indigenous Peoples Law And Policy Program Date Posted: 23 Jan 2018	190
4.	How Trial Judges Should Think About Forensic Science Evidence Jonathan J. Koehler Northwestern University - Pritzker School of Law Date Posted: 12 Feb 2018	188
5.	Principles of Risk Assessment: Sentencing and Policing Christopher Slobogin Vanderbilt University - Law School Date Posted: 09 Mar 2018 [10th last week]	128
6.	Possible Problems at the San Clemente Checkpoint Elizabeth N. Jones Western State College of Law Date Posted: 17 Feb 2018 [8th last week]	112
7.	Accountability in Policing: How Complicity Perpetuates Institutional Injustice and Inequities in the United States and South Africa Aditi Juneja Independent Date Posted: 05 Feb 2018 [9th last week]	104
8.	Instructing Jurors on Reasonable Doubt: It's All Relative Michael D. Cicchini Independent Date Posted: 28 Feb 2018 [new to top ten]	97
9.	Sixth Amendment Sentencing after Hurst Carissa Byrne Hessick and William W. Berry University of North Carolina School of Law and University of Mississippi School of Law Date Posted: 07 Mar 2018 [new to top ten]	97
10.	The Myth of the Reliability Test Brandon L. Garrett and M. Chris Fabricant University of Virginia - School of Law and Innocence Project, Inc. Date Posted: 12 Mar 2018 [new to top ten]	92

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to papers:

Monday

• U.S. v. Sanchez-Gomez: Whether the U.S. Court of Appeals for the 9th Circuit erred in asserting authority to review respondents' interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents' individual claims were moot.

Tuesday

• Koons v. U.S.: Whether a defendant who is subject to a statutory mandatory minimum sentence, but who substantially assisted the government and received a sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e), is eligible for a further sentence reduction under 18 U.S.C. § 3582(c)(2), when the Sentencing Commission retroactively lowers the advisory sentencing guidelines range that would have applied in the absence of the statutory mandatory minimum.
• Hughes v. U.S.: Whether, as a four-justice plurality in Freeman v. United States concluded, a defendant who enters into a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.